Gary Steven Oliver’s tattoo, build and limp helped a police officer identify him as one of three people entering or attempting to enter premises as burglars in the early hours of Aug. 17, 2015.
The officer’s explanation of how he recognized Oliver from CCTV was accepted by a jury of three men and four women, who returned three guilty verdicts on Tuesday afternoon.
Justice Marva McDonald-Bishop remanded the defendant into custody for sentencing on Oct. 27, by which time it was hoped that a social inquiry report and victim impact report would be prepared.
Oliver was found guilty of attempting, with others, to enter as a trespasser the premises of Marshall’s Rent-a-Car on Owen Roberts Drive with intent to steal.
He was also found guilty of two burglaries, with others, at Cayman Business Machines on Hospital Road the same night. In the first burglary, cash totaling $1,500 and a tablet valued at $250 were stolen. In the second, $450 cash and 10 checks were stolen. Entrance was gained through a window that had been broken.
In her summing up of the case before the jury began deliberating, the judge noted that there was no fingerprint evidence, no DNA and no phone records.
She described as “critical” the officer’s purported identification of Oliver, which Crown counsel Eleanor Fargin was relying on to prove the defendant’s guilt. Defense attorney Philip Rule challenged the officer’s identification of Oliver because of the absence of safeguards in the process by which the CCTV was viewed.
The attempted burglary occurred when a glass door at Marshall’s was smashed and a block found inside. The business occupied one of several units in a single building; the electrical cupboard at one end of the building was broken into, the power was cut off and several meters were missing. With no electricity, Marshall’s closed circuit television camera did not work. Another business, however, had a back-up power supply and that camera captured clear images.
The investigating officer reviewed that CCTV footage and the footage from Cayman Business Machines. Although facial features were not visible, she was able to recognize the same three people in each video by the way they were dressed and the way they walked. She asked colleagues who had better local knowledge to also view the CCTV.
The investigating officer agreed it would have been better to show the CCTV to one person at a time so that the viewer would not be influenced by someone else and so there would not be any collusion. She also agreed that she had not made a record of what was said at the viewing.
Justice McDonald-Bishop pointed out that Cayman has rules for how an identification parade is carried out and how suspects’ photographs are viewed, but no procedure is in place for viewing CCTV.
The officer who identified Oliver said he had been in Cayman for 15 years, was a police officer for 10 years and knew Oliver for eight years. He said he saw Oliver several times per month both day and night, at a distance close enough to “bounce fists” and they sometimes ate at the same restaurant.
The judge said in her summing up that the officer knew Oliver was “chubby,” had a tattoo on his bicep and a distinct limp. He told the court he had never seen anyone else on the island with that distinctive walk.
The officer did not recall where he was when he viewed the CCTV and he did not make notes at the time. He said he was not influenced by anyone else and he would not have named Oliver if he was not sure.
The judge cautioned jurors that an honest witness can be mistaken and a mistaken witness can be convincing. They also had to be satisfied as to the quality of the CCTV images, which they saw for themselves. If they were not sure about the quality, they should place no reliance on them. If the images were of sufficient quality, then they had to consider the officer’s identification of the accused.
Oliver did not give evidence. In his police interview, which was read in court, he agreed that the man in the CCTV had a limp. He did not deny having a tattoo on his arm and he did not deny knowing the officer who had named him. He denied being the person in the CCTV and denied what he was accused of doing. He told police he could not remember where he was the night of the incidents.
The judge instructed jurors that Oliver had a perfect right not to give evidence and they could not jump to the conclusion that his silence proved the case against him. They still had to go back to the prosecution’s case and if they entertained any doubt they had to find him not guilty.
Other evidence included a pair of shoes and a tank top taken from Oliver’s home. They resembled the ones worn by the person in the CCTV, but there was nothing unique about them, the judge noted.
Ms. Fargin also called a tattoo artist, who said the Chinese symbol pictured on the person in the CCTV was not unique and he did not remember drawing such a design on anyone during the time he worked in Cayman.
After the jury’s verdicts, Justice McDonald-Bishop commended both counsel for their conduct of the case. She said Mr. Rule’s legacy in Cayman could be the attention he had brought to the need for a code for viewing CCTV evidence. Ms. Fargin said the matter would definitely be discussed.